Office of Personnel Management v. Richmond/Concurrence White

by Byron White

Justice WHITE, with whom Justice BLACKMUN joins, concurring.

I agree that the Government may not be estopped in cases such as this one and therefore join the opinion and judgment of the Court. I write separately to note two limitations to the Court's decision. First, the Court wisely does not decide that the Government may not be estopped under any circumstances. Ante, at 423. In my view, the case principally relied on by respondent, United States v. Pennsylvania Industrial Chemical Corp., 411 U.S. 655, 93 S.Ct. 1804, 36 L.Ed.2d 567 (1973) (PICCO ), may well have been decided on the basis of estoppel. But there is a world of difference between PICCO and this case: In PICCO, the courts were asked to prevent the Government from exercising its lawful discretionary authority in a particular case whereas here the courts have been asked to require the Executive Branch to violate a congressional statute. The Executive Branch does not have the dispensing power on its own, see Kendall v. United States ex rel. Stokes, 12 Pet. 524, 613, 9 L.Ed. 1181 (1838), and should not be granted such a power by judicial authorization.

Second, although the Court states that "[a]ny exercise of a power granted by the Constitution to one of the other branches of Government is limited by a valid reservation of congressional control over funds in the Treasury," ante, at 425, the Court does not state that statutory restrictions on appropriations may never fall even if they violate a command of the Constitution such as the Just Compensation Clause, cf. Jacobs v. United States, 290 U.S. 13, 54 S.Ct. 26, 78 L.Ed. 142 (1933), or if they encroach on the powers reserved to another branch of the Federal Government. Although Knote v. United States, 95 U.S. 149, 154, 24 L.Ed. 442 (1877), held that the President's pardon power did not extend to the appropriation of moneys in the Treasury without authorization by law for the benefit of pardoned criminals, it did not hold that Congress could impair the President's pardon power by denying him appropriations for pen and paper.

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